District Development Officer vs Amirbhai Mahmadbhai Sorathiya and Others

Abhilasha Kumari, J.

Rule. Mr. Biren A. Vaishnav, learned Counsel waives service of notice of rule on behalf of respondent No. 1 and Mr. C.B. Upadhyay, learned Assistant Government Pleader, waives service of notice of rule on behalf of respondents Nos. 2 and 3.

This petition has been preferred under Article 227 of the Constitution of India, with a prayer to quash and set aside order dated 03.07.2009, passed below application at Exhibit-198 in Regular Civil Suit No. 283 of 1997, whereby the said application for framing an additional issue regarding jurisdiction, has been rejected.

The brief factual background necessary for the decision of the petition is that the respondent No. 1, who is the original plaintiff in Regular Civil Suit No. 283 of 1997, approached the Civil Court by way of the said suit, inter alia with a prayer that the petitioner (Defendant No. 3 in the suit) be restrained from altering his seniority to his detriment. The respondent No. 1 was appointed as Assistant Sanchalak in Sanskar Kendra run by the Social Welfare Department of the State Government on 16.10.1964. The said Sanskar Kendra was closed and converted into a ''Balwadi'' and the respondent was absorbed as Junior Clerk in Bhavnagar District Panchayat, by giving him seniority in the cadre of Junior Clerk, from the date of his initial appointment. The grievance of the respondent No. 1, voiced in the suit is that his seniority is sought to be altered to his detriment. The petitioner is the main contesting defendant in the suit and has filed a written statement, taking the objection that the civil Court has no jurisdiction to entertain the suit, as the same is barred, in view of the provisions of the Gujarat Civil Services Tribunal Act, 1972. On 20.08.1997, the petitioner (defendant No. 3 in the suit) filed an application at Exhibit-26 in the said suit, under the provisions of Order 14 Rule 2(2) read with Order 7 Rule 11(d) of the CPC (''the Code'' for short). The prayer made in the said application was to frame a preliminary issue regarding jurisdiction and after hearing the same to dismiss the suit, under the provisions of Order 7 Rule 11(d) of the Code. The said application of the petitioner was rejected by order dated 18.10.1997, by the trial Court. Aggrieved thereby, the petitioner approached the High Court in revision, by filing Civil Revision Application No. 47 of 1998. This application was rejected, with certain observations, permitting the petitioner to raise the questions raised before the High Court, at the time of argument before the trial Court. Thereafter, the petitioner filed another application at Exhibit-198, inter alia with a prayer to frame an additional issue regarding jurisdiction. The said application has been rejected by the trial Court, by passing the impugned order, giving rise to the filing of this petition.

Mr. Vijay Patel, learned Counsel for H.L. Patel Advocates for the petitioner has submitted that the High Court has permitted the question of jurisdiction to be raised at a later stage and, therefore, no prejudice would be caused to either of the parties, if the prayer for framing an additional issue would have been granted by the trial Court. It is further submitted that the earlier application at Exhibit-26 had been filed to frame a preliminary issue regarding jurisdiction, whereas the present application has been filed for framing an additional issue, therefore, the rejection of the said application by the trial Court on the ground that the prayer made in the second application is similar to that made in the first one, is not tenable. It is also submitted that the issue regarding jurisdiction ought to have been framed, and the said issue is the vital one, as in the absence of any specific issue, it would not be appropriate for the parties to raise the same, at a later stage.

No further submission has been advanced by the learned Counsel for the petitioner.

The petition has been strongly contested by Mr. Biren A. Vaishnav, learned Counsel for respondent No. 1 (Plaintiff in the suit). He has submitted that the prayers made in the application at Exhibit-198 are essentially the same, as those made in the earlier application at Exhibit-26. He has further submitted that the petitioner had filed a revision application against the order rejecting the prayer for framing a preliminary issue regarding jurisdiction, and the order of the trial Court has been found to be just and proper by this Court, as is evident from a perusal of the order dated 19.06.1998. This Court has already accorded liberty to the petitioner to raise the said question, at the time of argument of the suit, and as the same prayer has already been rejected in the revision application, it could not have been made again in the present application, under the guise of the order of the High Court. It is further submitted that the application at Exhibit-26 was filed in the year 1997, and the present petition has been filed on 20.07.2009, therefore, the observations of the trial Court that the petitioner is trying to delay the matter, cannot be said to be unfounded. On the basis of the above submissions, it is prayed that the petition be rejected.

Mr. C.B. Upadhyay, learned Assistant Government Pleader for respondents Nos. 2 and 3, has submitted that the said respondents are more or less formal parties and no further submissions would be necessary.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other material on record.

6.1 It is not disputed that the petitioner had earlier filed an application at Exhibit-26, with a prayer for framing a preliminary issue regarding jurisdiction, which was rejected by order dated 18.10.1997, by the trial Court. The High Court, in revision against the said order has, by order dated 19.06.1998, held as under,

The learned 3rd Jt. Civil Judge (SD), Bhavnagar after considering the pleadings and the Schedule to the Gujarat Civil Services Tribunal Act, 1974, has prima-facie found that it has jurisdiction to try the suit which is under challenge in this revision application. After having heard the learned advocates at length, I am of the view that the prima-facie view expressed by the learned trial judge is just and proper and no interference is called for in this revision application u/s 115 of Code of Civil Procedure. However, the petitioner can still raise the said question at the time of argument of the suit on the basis of the evidence on record that may be produced, when the Court will have a clear picture at that time about the relief that may or may not be granted to the petitioner. In view of this, the present revision application, eventhough raises the question of jurisdiction, is rejected. Notice discharged with no order as to costs.

6.2 A perusal of the above-quoted order makes it clear that the prima faice view expressed by the trial Court that it has jurisdiction, has been confirmed by the High Court. The application at Exhibit-198 also contains similar prayers, as those contained in Exhibit-26, with the sole difference that the prayer regarding dismissal of the application under Order 7 Rule 11(d), made in the earlier application, is missing in the second application, and the second application has been filed with a prayer for framing an additional issue regarding jurisdiction, instead of a preliminary issue.

6.3 Issues have been framed in the suit on 15.12.2008, vide Exhibit-134. No doubt, as per the provisions of Order 14 Rule 5 of the Code, the Court is empowered to pass an order, at any time, before passing of a decree, to amend an issue or to frame an additional one, on such premises as it thinks fit, if said issue is deemed to be necessary for determining of the matters in controversy between the parties; however, in the present case, the earlier application of the petitioner has been rejected, which order has been confirmed by the High Court. It is evident from the said order, which has been reproduced hereinabove, that liberty has been granted to the petitioner to raise the "said question", at the time of argument of the suit. The above said order of the High Court has attained finality as it has not been challenged. The finding of the trial Court, as mentioned in the impugned order, that a similar application has already been rejected and the order of rejection has not been set aside by the High Court, therefore, the present application containing similar prayers cannot be allowed, and the order of the trial Court cannot be said to be unreasonable or unjustified, in the factual matrix, obtaining in the present case.

6.4 The petitioner has been permitted to raise the question regarding jurisdiction, at the time of argument of the suit, on the basis of evidence on record, by the order of this Court. In this view of the matter, it cannot be said that any prejudice would be caused to the petitioner, by the rejection of the application for framing an additional issue regarding jurisdiction, especially as the order of the High Court has attained finality.

6.5 As a result of the above discussion and as no manifest error of law or jurisdiction has been committed by the trial Court, while passing the impugned order, this Court does not consider it fit to interfere with the same, in exercise of its supervisory jurisdiction.

The petition fails, and is dismissed. Rule is discharged.